Property Owners, Consultants and Municipalities Should Follow Changing Stormwater Management Regulations

There has been a lot of activity on the federal, state and local levels concerning stormwater runoff and management, which property owners, municipalities and engineers should follow closely. Back in 2008, the Department of Environmental Protection (DEP) amended its wetland regulations to incorporate ten stormwater management standards for projects subject to wetlands jurisdiction. Among other things, those standards introduced “environmentally sensitive site design” and “low impact development (LID)” techniques to Notice of Intent applications and Order of Conditions permits, with which owners and consultants should become familiar.

In 2008 and 2009, the DEP also proposed a statewide stormwater permit which would have created stormwater regulations for upland areas that were not governed by wetland regulations. DEP’s proposal would have regulated private impervious surfaces greater than five acres throughout the state and greater than two acres within the Charles River Watershed. After receiving significant public comment on the proposed regulations, the DEP has not issued final regulations.

On the federal level, the Environmental Protection Agency (EPA) has taken several steps to regulate stormwater runoff and municipal storm sewer systems. In the Spring, EPA issued a draft general permit for stormwater discharges in the Charles River watershed towns of Bellingham, Franklin and Milford, with regulation of impervious areas larger than two acres and a particular focus on excessive phosphorous loadings that are believed to be contributing to water quality violations (e.g., algae blooms, degraded fish habitat, etc.). The public comment period on the draft permit ended on September 30, 2010. EPA is expected to issue a final permit decision after addressing the public comment. Presumably, EPA will look to apply the permit conditions to other towns and watersheds once it sees how the program works in the three towns.

Earlier this year, the EPA also issued a new draft “MS4 permit” (Municipal Separate Storm Sewer System) for 84 cities and towns in the North Coastal Region (north to Newbury, west to Wilmington, and south to Weymouth). Building on the prior permit from 2003, the municipalities are required to continue implementing minimum control measures and best management practices for stormwater runoff, including adopting by-laws and ordinances to control construction site runoff and post-construction runoff. The draft permit is designed to reduce the levels of phosphorous in the Charles River and pathogens in the Charles, Neponset and Shawsheen Rivers. Thus, owners and engineers should expect increased stormwater regulation at the local level, including emphasis on LID techniques. The public comment period on the North Coastal MS4 permit has closed and EPA’s website indicates that it anticipates issuing the final permit in 2010.

Two other stormwater programs should be followed: EPA’s Construction General Permit, which applies to construction activities greater than one acre, which expires in June of 2011. EPA is expected to issue a new general permit for construction in June 2011, to include new effluent limitations guideline (ELG) to control the discharge of pollutants from construction sites. It will be important to monitor and prepare for new changes to that permit.

Finally, the re-issued Remediation General Permit, concerning the discharge of treated groundwater to surface water, is in effect as of September 10, 2010. Operators that received coverage under the 2005 permit are required to take certain actions by December 9, 2010. Owners, operators and consultants need to pay attention to the new requirements in the new permit.

Affordable Housing under Chapter 40B Is Upheld By the Supreme Judicial Court:

In September, the Court issued an important decision limiting the conditions a local zoning board of appeals is allowed to impose on affordable housing under Chapter 40B. At the same time, the Court confirmed the ability of the State’s Housing Appeals Committee (HAC) to strike local conditions that do not comply with the affordable housing law. (The case is Zoning Board of Appeals of Amesbury vs. Housing Appeals Committee).


In the Amesbury case, the local board had imposed 94 conditions (some containing additional subconditions) on its “approval” of a 40-unit condominium development. The board’s conditions concerned project funding, regulatory documents, financial documents, and the timing of sale of affordable units in relation to market rate units. However, the Court ruled that a local board was not authorized to impose those types of conditions. A local board is limited to imposing conditions with respect to height, site plan, size or shape, or building materials as are consistent with the terms of Chapter 40B. The Court also ruled that the Housing Appeals Committee was allowed to strike improper local conditions even if the conditions did not render the project “uneconomic” as that term is used in Chapter 40B. These are important points for developers and contractors.

The New “Prompt Pay” Construction Law Goes Into Effect on November 8, 2010, Expediting Payment and Limiting “Pay if Paid” Clauses

Many construction contracts include “pay if paid” or “pay when paid” provisions, which condition payments to a subcontractor or supplier on payments first being made by the owner. A new “prompt pay” law in Massachusetts limits the use of such provisions on private construction contracts that exceed $3 million dollars (except for residential projects under five units).  The new law goes into effect on november 8, 2010.

The new “prompt pay” law, G.L. c. 149, §29E, also provides time deadlines for processing payment requests: applications for periodic progress payments must be accepted at least every 30 days; approval or rejection must occur within 15 days (otherwise the application shall be deemed approved); and, payment must be made within 45 days of approval. Any rejection of an application must be in writing, explain the basis for the rejection, and be certified as made in good faith. Deadlines are also established for processing change orders. Of course, the specific details of the various provisions are set forth in the statute.

“Pay if paid” or “pay when paid” clauses shall be void and unenforceable unless money is not paid because a subcontractor failed to perform or if the owner becomes insolvent and the contractor is pursuing “all reasonable legal remedies” to obtain payment from the person (e.g. pursing a lien under the Mechanics Lien law). The limitations on conditional payment provisions must be expressly stated in the contract. As a result, owners, contractors, subcontractors and designers should review their standard form contracts to comply with this and other aspects of the new law’s requirements.